Sayour v Elliott [2018] NSWSC 59

Supreme Court New South Wales

Medium Neutral Citation: Sayour v Elliott [2018] NSWSC 59 Hearing dates: 4 October 2017 Date of orders: 07 February 2018 Decision date: 07 February 2018 Jurisdiction: Equity Before: Ward CJ in Eq Decision: (1) Declare that the sum of $5,000,000 deposited by the late Jamil Moustafa Sayour to Bank of Sydney Ltd ABN 44 093 488 629 on or about 9 February 2015 was money that was held on trust for the second plaintiff as trustee of the Sayour Family Trust established under trust deed dated 7 July 2008. (2) Declare that the money standing in the name of the late Jamil Moustafa Sayour in account no 811414 and term deposits 1145895 and 1162098 with Bank of Sydney Ltd ABN 44 093 488 629 is held on trust for the second plaintiff as trustee for the Sayour Family Trust. (3) Order that the first defendant do all things necessary to be done by her to cause the money standing in the name of the late Jamil Moustafa Sayour in account no 811414 and term deposits 1145895 and 1162098 with Bank of Sydney Ltd ABN 44 093 488 629 to be paid to the second plaintiff. (4) To the extent that the money now standing in the name of the late Jamil Moustafa Sayour in account no 811414 and term deposits 1145895 and 1162098 with Bank of Sydney Ltd ABN 44 093 488 629 is less than $5,003,080, enter judgment in favour of the second plaintiff against the estate of the late Jamil Moustafa Sayour in the amount of that shortfall. (5) Judgment in favour of the second plaintiff against the estate of the late Jamil Moustafa Sayour in the sum of $300,000. (6) Reserve the question of costs. Catchwords: EQUITY — Trusts and trustees — Alleged misappropriation of trust funds — Deposit of funds to bank account styled as trust account. Legislation Cited: Uniform Civil Procedure Rules 2005(NSW), r 14.26(1) Cases Cited: Alesco Corporation Ltd v Te Maari [2015] NSWSC 469 Ex parte Kingston; re Gross (1871) LR 6 Ch App 632 Gray v Gray [2004] NSWCA 408; (2004) BPR 22,755 Sayour v Elliott [2017] NSWSC 713 Schmierer v Taouk [2004] NSWSC 345; (2004) 207 ALR 301 Category: Principal judgment Parties: Moustafa Sayour (First Plaintiff) Broadway Plaza Pty Ltd atf Sayour Family Trust (Second Plaintiff) Fatima Sayour (Third Plaintiff) Catharine Elliott (First Defendant) Sayour Holdings Pty Ltd (Second Defendant) JS 75 Pty Ltd (Third Defendant) Representation: Counsel: DA Smallbone with JP Gatland (Plaintiffs) D Allen (Defendant)